FACTS:
Upon
December 12, 1917, an action was instituted in the Court of First Instance of
the city of Manila by P. J. O'Brien to recover of Leung Ben the sum of P15,000
alleged to have been lost by the plaintiff to the defendant in a series of
gambling, banking and percentage games conducted ruing the two or three months
prior to the institution of the suit. In his verified complaint the plaintiff
asked for an attachment, under section 424, and 412 (1) of the Code of Civil
Procedure, against the property of the defendant, on the ground that the latter
was about to depart from the Philippine islands with intent to defraud his
creditors. This attachment was issued; and acting under the authority thereof,
the sheriff attached the sum of P15,000 which had been deposited by the
defendant with the International Banking Corporation.
ISSUE:
Whether
or not Leung Ben has the legal basis to recover the money he lost to O’brien in
a series of gambling, banking and percentage games.
YES.
As a general rule, money lost in gaming and voluntarily paid by the loser to
the winner cannot in the absence of statue, be recovered in a civil action. But
Act No. 1757 of the Philippine Commission, which defines and penalizes several
forms of gambling, contains numerous provisions recognizing the right to
recover money lost in gambling or in the playing of certain games (secs. 6, 7,
8, 9, 11). The original complaint in the action in the Court of First Instance
is not clear as to the particular section of Act No. 1757 under which the
action is brought, but it is alleged that the money was lost at gambling,
banking, and percentage game in which the defendant was banker. It must
therefore be assumed that the action is based upon the right of recovery given
in Section 7 of said Act, which declares that an action may be brought against
the banker by any person losing money at a banking or percentage game.
Is
this a cause arising upon contract, express or implied, as this term is used in
section 412 of the Code of Civil Procedure?
In
the case now under consideration the duty of the defendant to refund the money
which he won from the plaintiff at gaming is a duty imposed by statute. It
therefore arises ex lege. Furthermore, it is a duty to return a certain sum
which had passed from the plaintiff to the defendant. By all the criteria which
the common law supplies, this a duty in the nature of debt and is properly
classified as an implied contract. It is well- settled by the English
authorities that money lost in gambling or by lottery, if recoverable at all,
can be recovered by the loser in an action of indebitatus assumpsit for money
had and received. This means that in the common law the duty to return money
won in this way is an implied contract, or quasi-contract.
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